Two improper comments by a prosecution witness in the Tashia Stuart murder trial will not impact the jury's ability to make its own decision, Superior Court Judge Cameron Mitchell ruled Tuesday.
Mitchell fined Franklin County Prosecutor Shawn Sant $200 for not adequately advising Stuart's father, Rolfe Hebert, about what he could discuss on the stand.
Hebert alluded to a disagreement about how Stuart's daughter should be educated and began to tell the jury a neighbor told him how his ex-wife, Judy Hebert, was killed.
Rolfe Hebert eventually was cut off by a defense attorney as he told the story, which was later deemed hearsay.
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"(The neighbor) said, 'She killed her. Tashia murdered Judy. She shot her three times with a .357,' " Hebert said.
After removing the jury from the room, Mitchell denied a defense motion for a mistrial. He gave a stern warning to Sant that if any other "incidents" arise, he would have to seriously consider a mistrial.
Mitchell ordered the jury to disregard the comments.
Defense attorney Peter Connick argued that Sant solicited the comments from Hebert and hadn't advised the witness on what he could discuss while testifying.
"He had to go after it," Connick said. "He asked and persisted until he got (the) answer."
Sant countered that Hebert's comments were not in response to his questions and though they may have gone into detail, they weren't improper.
"I don't think this is anything outside of what's been offered or discussed," Sant said.
This is Sant's second major case since being elected in November of 2010. Connick and fellow defense attorney Bob Thompson asked earlier in the trial for Sant to be removed from the case, claiming he violated evidence rules. Mitchell ruled Sant didn't violate the rules.
Stuart, 40, is charged with first-degree murder with aggravating circumstances and attempted first-degree murder for allegedly killing her mother, Judy Hebert, 58, on March 3, 2011, inside the home they shared on Salmon Drive in Pasco. Hebert died from a gunshot wound to the chest.
Stuart claims she shot Hebert in self-defense as her mother came at her with a hatchet. The attempted murder charge stems from an incident where an 18-gallon bin full of items fell onto Hebert's head inside her garage just two weeks before she died.
Rolfe Hebert described his relationship with his ex-wife as "atypical," calling her his best friend even after they split.
Hebert recalled multiple phone calls from Stuart in the weeks leading up to his ex-wife's death, trying to get the combination to a safe in her mother's room. Hebert repeatedly told Stuart he wouldn't give her the combination.
Hebert also testified that his ex-wife told him she believed Stuart and her husband, Todd Stuart, were trying to kill her. She claimed the pills they were giving her had names and numbers scratched off.
"If I didn't know better, I'd think they were trying to kill me," Hebert said his ex-wife told him in a phone conversation.
Two days before his ex-wife was killed, Hebert testified, she discovered unauthorized cash withdrawals had been made using her debit card. She reportedly gave Todd and Tashia Stuart the pin number to the card to buy things for the house while she recovered from the bin hitting her.
Hebert talked to his ex-wife for the last time hours before she was killed, when she called to say she had canceled her debit card, he testified. A few hours later Stuart called him and asked what she should do if "mom comes at me."
"I told her to leave the house if they are having problems," Hebert said.
During cross examination, Thompson brought up inconsistencies in Hebert's statements to investigators and lawyers since his ex-wife's death. Thompson also questioned Hebert about not giving Stuart the $10,000 her mother left for her in her will.
Hebert didn't give Stuart the money based on advice from his legal counsel, he said. Most of the money from Judy Herbert's estate went into a trust fund for her granddaughter,
Mitchell also ruled Tuesday that Todd Stuart will have to testify as a defense witness. Stuart was acquitted last year by a Franklin County jury of conspiring to kill Judy Herbert.
Todd Stuart hoped to avoid testifying by pleading the Fifth Amendment. His lawyer, Peyman Younesi, argued that Todd Stuart could open himself up to state and federal charges if he takes the stand.
"Anything and everything that comes up could have him pulled back into this case," Younesi said.
Sant agreed that Todd Stuart could implicate himself in additional crimes if he takes the stand.
The defense wants to ask Stuart questions related to the incident where the bin fell on his mother-in-law's head, Connick said.
Mitchell ruled that it would be "straining the imagination" to believe Stuart could be charged with crimes related to the case without violating the double jeopardy clause, which protects suspects from being tried again for the same crime after acquittal.
Stuart will take the stand Wednesday morning as the trial continues in the Franklin County Courthouse.
w Tyler Richardson: 582-1556; trichardson@tricity
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